Point of Law : Decree/Award – Execution proceedings - Court in execution proceedings cannot go behind the decree.

JUDGMENT

1. The present petition has been filed under Section 36 of the Arbitration and Conciliation Act, 1996 by the decree holder- Delhi Airport Metro Express Private Limited (henceforth referred to as the Delhi Airport Metro') seeking execution/enforcement of the arbitral award dated 11.05.2017.

2. Pertinently, the challenge to the arbitral award dated 11.05.2017 by the judgment debtor under the provisions of Section 34 of the Act stood dismissed vide judgment dated 06.03.2018 [OMP (COMM.) No. 307 of 2017], against which judgment debtor preferred an appeal [FAO (OS) (COMM) No. 58 of 2018], which was partly allowed by the Division Bench of this Court vide judgment dated 15.01.2019 and the impugned award was set aside. Against judgment dated 15.01.2019 passed by the Division Bench of this Court, decree holder preferred a Special Leave Petition before the Hon'ble Supreme Court [Civil Appeal No. 5627 of 2021 in SLP(Civil) No. 4115 of 2019, (2022) 1 SCC 131)], which was allowed by judgment dated 09.09.2021 by the Hon'ble Supreme Court. The review petition [EA (OS) No. 1282 of 2021] filed by the judgment debtor against the judgment dated 09.09.2021 also stood dismissed by the Hon'ble Supreme Court on 23.11.2021. Hence, the present petition is being filed by the decree holder for execution of the award dated 11.05.2017 passed by the learned arbitral tribunal.

3. Learned senior counsel for decree holder submitted that the award being final and binding is enforceable under Section 36 of the Act read with the provisions of the Code of Civil Procedure, 1908 and deserves to be executed as such.

4. Learned senior counsel for decree holder next submitted that gross decreetal sum along with interest up to 14.02.2022 computed in accordance with the arbitral award is Rs. 8009.38 crores. Out of the said amount, only a sum of Rs. 1678.42 crores has been paid so far by DMRC. Thereby, as on 14.02.2022, the remaining decreetal amount payable with interest is Rs.6330.96 crores [Rs.8009.38 crores - Rs. 1,678.42 crores]. Learned senior counsel for decree holder also submitted that the aforesaid calculation has strictly been made in accordance with the arbitral award and the settled legal principles, which are certified by the Chartered Accountant vide Certificate dated 13.02.2022.

5. Besides other grounds, the primary objection raised by the judgment debtor to the aforesaid calculation submitted on behalf of decree holder, is that the decree holder has calculated interest for the delayed period of Termination Payment at the rate of Prime Lending Rate + 2% interest whereas it should have been calculated on the basis of applicable Prime Lending Rate (PLR) notified by SBI. Learned senior counsel for judgment debtor submitted that as per the Arbitration Award dated 11.05.2017 higher deterrent interest to be paid in case of unpaid amount to decree holder as per Article 29.8 of the Concession Agreement, is SBI Prime Lending Rate + 2%.

6. It was also submitted by learned senior counsel that Reserve Bank of India had replaced the Prime Lending Rate with Base Lending Rate vide notification dated 01.07.2010, which was further replaced with Marginal Cost of Lending Rate w.e.f. 01.04.2016.

7. During the course of hearing, learned senior counsel for judgment debtor drew attention of this Court to the provisions of Section 31 (7) of the Arbitration and Conciliation Act, 1996 wherein it is stated that "the arbitral tribunal may include in the sum for which the award is made interest" to submit that the word "may" clearly points out that the discretion is vested in the arbitral tribunal, which in this case has been exercised by the arbitral tribunal and no interest over interest i.e. capitalization of the awarded amount till the date of the award, has been awarded. It was submitted that the execution amount claimed by the Delhi Airport Metro is incorrect as it has ad